Hines v. Thompson
123 Miss. 634
Miss.
1920
Check Treatment
Sam C. Cook, P. J.,

delivered the opinion of the court.

The plaintiff sued the' Mobile & Ohio Railroad Company for the 'value of a mule killed by the running train of the appellant. The evidence offered by the plaintiff made out his case under the statute. He proved that the mule was killed by the train; he proved He value of the mule; he proved that the railroad track was straight for a mile *641south of the place where the animal was struck; he also proved that there was a wound on the right side of the mule. The engineer running the train testified that, he first saw the mule standing near the track, and at first he thought it might be a human being, but when the animal stalled toward the train he discovered that it was a mule, lie said it was impossible to stop the train or to avoid striking the mule. He also said that he did the only thing . lie could do, and that was to open his cylinder cocks, and he further testified that in seven times out of ten this, would scare stock away from the track. When the mule was struck the pilot or “cowcatcher” had passed the mule, and the engineer did not know what part of the locomotive struck the mule.

As we view the evidence in this case, the physical facts did not warrant the jury in disbelieving the testimony of the engineer to the effect that he did everything he could have done to prevent the killing of the mule. "It seems to have been a clear case of suicide.” An unbiased study of the evidence of the engineer convinces this court that he spoke the truth when he said that he did all he could have done under the circumstances. The physical facts do not contradict or tend to contradict the testimony of the only eyewitness. This was a “touch and go” situation confronting the engineer, and he did what he believed would most probably drive the mule from the track.

“Surely a trainload of human beings need not be jeopardized to avoid killing a mule. Only reasonable care is required in such cases.” Railroad v. Wright, 78 Miss. 127, 28 So. 806.

The defendant met and overcame the presumption of the statute, and the court should have directed a verdict for the defendant.

Reversed and dismissed-